In last week's Findlaw column, Tony Sebok discussed County of Santa Clara v. Superior Court, which is on appeal to the California Supreme Court regarding whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingency fee agreement . (Prior post here).

Sebok believes that the California Supreme Court can take two approaches. On the one hand, Sebok argues the court could "simply agree with the trial court that public nuisance litigation is identical to criminal prosecution, and that municipalities cannot “farm out” the state’s prosecutorial power." Sebok, however, argues that this approach would "be a mistake" because the analogy to criminal prosecutions is misplaced. Alternatively, Sebok argues that the court could go behind the prosecution analogy, and ask "whether the lack of neutrality which is present in every litigation—whether brought by the state or a private actor—is exacerbated in unacceptable ways by the retention of plaintiffs’ firms."